TERMS OF SERVICE
Last Updated: July 2nd, 2015
Software and Services are collectively referred to as “Harmonix Games Services.” “Software” means any and all software programs and applications distributed, published or otherwise made available by Harmonix Games or its affiliates including, but not limited to mobile games, downloadable/installable games for personal computers and entertainment console devices, and games accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manual(s), packaging and associated files, documentation or other materials, and any copies of the foregoing. “Services” means any and all services made available by Harmonix Games, including but not limited to services accessed through mobile devices and third party social and mobile networks, by means of a browser or by other online communication method, and via websites owned and controlled by Harmonix Games (the “Sites”), including www.beatniksgame.com and any official websites for its Software.
We reserve the right to make changes to these Terms from time to time without advance notice and in our sole discretion. When we make changes to these Terms, we will post them here. We encourage you to bookmark and review these Terms on a regular basis in the course of using Harmonix Games Services, since you have agreed to accept any such changes in order to use Harmonix Games Services. We provide you with access to and use of Harmonix Games Services strictly conditioned upon and subject to your compliance with these Terms.
You understand and agree that Harmonix Games Services may be used only for lawful purposes consistent with their intended uses and in accordance with these Terms, and are available only for your personal, noncommercial use where your use is not prohibited by applicable laws and regulations. Harmonix Games Services may require the use of hardware, software, devices, internet and other third party products and services which must be separately obtained by you, and you are solely responsible for obtaining and paying for such products and services, and complying with any associated third party terms and conditions (including their payment terms for purchases related to Harmonix Games Services), which may impose further limitations on your use.
In addition, Harmonix Games Services are NOT intended for users under 13 years of age (whether or not our content has been rated as appropriate for such ages). Therefore, you are NOT authorized to use Harmonix Games Services if you are under 13 years of age. If you are between the ages of 13 and 17, or under the age of majority where you live, you represent that your legal guardian has reviewed and agreed to these Terms.
You are responsible for your own interactions and communications, including the transmission, posting, and uploading of information, and are responsible for the consequences of such interactions with and communications to Harmonix Games Services.
We specifically prohibit any use of the Harmonix Games Services, and require all users to agree not to use the Harmonix Games Services, for any of the following:
- Providing any information which is incomplete, false, inaccurate, misleading or not your own
- Engaging in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation, or that fails to comply with accepted Internet protocols
- Communicating, transmitting, or otherwise providing material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it
- Communicating, transmitting, or otherwise providing material that reveals trade secrets, unless you own them or have the permission of the owner
- Communicating, transmitting, or otherwise providing material that infringes on or violates any other intellectual property, privacy, publicity or contractual right of another
- Communicating, transmitting, or otherwise providing material that constitutes unsolicited, inappropriate, libelous, defamatory, obscene, offensive, threatening or otherwise harassing content
- Communicating, transmitting, or transferring (by any means) information or software derived from Harmonix Games Services to foreign countries in violation of any applicable export control laws
- Attempting to interfere in any way with Harmonix Games Services or our networks or network security (or those of our business partners), or attempting to use Harmonix Games Services to gain unauthorized access to any other computer system
- Communicating, transmitting, or otherwise providing material that is in violation of applicable laws or regulations
- Harassing, threatening, defrauding or “stalking” any other users or any employees or contractors of Harmonix Games or any of its business partners
- Making offers, advertisements or proposals for goods, services or other commercial activities outside of Harmonix Games Services
- Using Harmonix Games Services for anything other than their intended purpose or in any manner inconsistent with their intended use
- Using Harmonix Games Services in violation of applicable laws and regulations, these Terms or any terms and conditions of third party products, services and platforms that are used in conjunction with Harmonix Games Services
- Assisting, permitting or encouraging any party in engaging in any of the activities described above
Violations of computing, system or network security may result in civil or criminal liability. We will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting any user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security and integrity of Harmonix Games Services, including, without limitation, the following:
- Accessing data not intended for you or logging on to our servers or accounts, which you are not authorized to access
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt)
- Attempting to interfere or interfering with or causing excessive use of the operation of Harmonix Games Services, our provision of services to any other users or visitors to our Sites, our hosting provider or our network, including, without limitation, via means of submitting a virus to the Sites, overloading, “flooding”, “mailbombing” or “crashing” the Sites
- Forging any TCP/IP packet header or any part of the header information in any e-mail or transmission or posting to Harmonix Games Services
- Deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any code or underlying ideas or algorithms of any part of the Harmonix Games Services
- Using, developing or distributing any “bot”, spider, unauthorized script, unauthorized scraper or offline reader, or any other cheat, exploit, mod, bot, hack or the like, or any unauthorized third party software designed to modify or interfere with or provide automated access to or use of the Harmonix Games Services (including for purposes of accumulating “digital” or “virtual goods” or “virtual currency” or bypassing features that otherwise require payment)
- Assisting, permitting or encouraging any party in engaging in any of the activities described above
If you create any accounts with us or with third party services for use with Harmonix Games Services, you are responsible for maintaining the security of your credentials, password, payment details and other sensitive information for the account, and you agree to pay all fees or charges incurred by such account, including applicable taxes, at the time the applicable fee or charge becomes payable. You are fully liable for all fees and charges made through your account when they are made, all such transactions are final, and there are no refunds, transfers or exchanges.
We control and operate the Harmonix Games Services from the United States, and process information within the United States. We do not represent that materials available through Harmonix Games Services are appropriate or available for use in other locations. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Harmonix Games Services.
Software may be is subject to export controls under the laws and regulations of the United States and other jurisdictions. By visiting, accessing, downloading, installing or otherwise using Harmonix Games Services, you acknowledge that you are not a national of, or resident within, any of the countries that are subject to trade embargo under these laws and regulations, or listed on any of the United States Government’s lists of prohibited and restricted parties.
PROPRIETARY RIGHTS AND LIMITED LICENSE
No material provided through Harmonix Games Services may be copied, reproduced, republished, uploaded, posted, transmitted, broadcast or distributed in any way, except as specifically permitted pursuant to these Terms. The Harmonix Games Services, including all of their information and contents, such as names, logos, designs, text, data, wallpaper, icons, characters, artwork, images, photographs, graphics, music, sound, messages and software (collectively, “Materials and Content”), are Harmonix Games property or that of our partners or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided in these Terms, by the Software or on the Sites, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials and Content from Harmonix Games Services in whole or in part, for any public or commercial purpose without our specific prior written permission. We grant you a personal, limited, non-exclusive, non-transferable, license (without right to sublicense) to access Harmonix Games Services (including by downloading applicable Harmonix Games software, which are licensed and not sold to you) and to use the products and services expressly made available to you therein in accordance with these Terms, and in the case of Harmonix Games software, in accordance with the applicable EULA. We reserve the right, for any reason or for no reason, in our sole discretion and without notice to you, to modify such products and services and to terminate, change, suspend or discontinue any aspect of Harmonix Games Services, including, but not limited to, their Materials and Content as well as features, pricing (including pricing and availability of “digital” or “virtual goods” or “virtual currency”) and/or availability of Software, and we will not be liable to you or to any third party for doing so. We reserve the right to impose and enforce additional rules for and limits on use of Harmonix Games Services or restrict your access to part, or all, of Harmonix Games Services without notice or penalty, including by terminating any user accounts for engaging in prohibited conduct or otherwise violating these Terms. We have the right to change these rules and/or limitations at any time, in our sole discretion.
As between you and us (or any other entity or person whose intellectual property is available through the Harmonix Games Services), we (or the respective entity or person) are the sole and exclusive owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on the Site, and are the copyright owner or licensee of the Materials and Content on the Harmonix Games Services, unless otherwise indicated. All such Materials and Content, along with the copyrights, trademarks, service marks, trade dress and/or other intellectual property and proprietary rights therein, as between you and us, are owned by us or their third party owner and may be registered in the United States and internationally. You agree not to display or use such Materials and Content in any manner inconsistent with these Terms without our prior permission, and nothing within Harmonix Games Services should be construed to grant any ownership interest in or any license or right to use any such Materials and Content (including any “digital” or “virtual goods” or “virtual currency”) inconsistent with these Terms and without our prior written consent.
Except as otherwise provided herein, use of the Harmonix Games Services does not grant you a license to any Materials and Content or features you may access through Harmonix Games Services, and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Materials and Content, features or materials, in whole or in part. Any commercial use of Harmonix Games Services is strictly prohibited, except as expressly allowed herein or otherwise expressly approved by us. You may not download or save a copy of any of the Materials and Content for any purpose except as otherwise provided by us. If you make use of Harmonix Games Services, other than as provided herein, in doing so you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. All Materials and Content are protected by law including, but not limited to, copyright and trademark law.
Community Videos Permission
We at Harmonix Games are supportive of our fans and players who produce videos to share their own commentary, feedback, how-to’s, previews and reviews of our games on YouTube, Twitch.tv or other community-based video/streaming sites, including ad-supported videos and through monetized channels on those sites. Therefore, notwithstanding the general limited license above, if you are one of these users, we grant you an additional limited permission for your reasonable use of in-game audio and video from Harmonix Games’ games in your video (but excluding any music purchased, played through or otherwise on your device that you use in such games), for which we encourage and greatly appreciate links from your presentation to the game’s webpage and app storefronts where the game is available for purchase. Your use is subject to our right to cancel this permission at any time for any reason without liability to you, including for violation of community site guidelines, infringement of other third party rights, or conflict with the ownership and exercise of our rights (or those of our developer partners or other business partners) in the Materials and Content. If you have questions about whether your specific community-related use of content is permissible under this part of the Terms, please email us at firstname.lastname@example.org.
Any and all content, comments, feedback, suggestions, ideas, concepts, questions or other communications (collectively “User Content”) that you submit to us through Harmonix Games Services will be deemed non-confidential and non-proprietary. By submitting any User Content, you grant to us a perpetual, irrevocable, royalty-free, worldwide, fully sublicensable and transferable license to copy, publish, broadcast, translate, modify, create derivative works from, distribute, reproduce or use the User Content in any commercial or non-commercial manner whatsoever. We will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products or services that incorporate or otherwise rely upon such information. We shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content, or respond to any User Content.
By submitting User Content, you represent and warrant that you have all necessary authorization and right to submit the User Content to us and the User Content does not (i) contain false or misleading information, (ii) infringe on the intellectual property or other proprietary rights or privacy rights of any third party, (iii) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing content, or (iv) contain computer viruses, worms or other harmful files, scripts or code. You are solely responsible for the User Content and you hereby agree to indemnify and hold us and our affiliates and our and their respective directors, officers, employees, agents, business partners and content and service providers, harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party. Please DO NOT provide any User Content to us for which you do not wish to grant us the foregoing rights in or make the representations and warranties in accordance with the above.
DISCLAIMERS AND LIMITATION OF LIABILITY
You assume all responsibility and risk with respect to your use of Harmonix Games Services, which are provided on an “AS IS” and “AS AVAILABLE” basis in all respects. HARMONIX GAMES DISCLAIMS, AND YOU HEREBY IRREVOCABLY WAIVE, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA HARMONIX GAMES SERVICES ( INCLUDING WITHOUT LIMITATION, ALL CONTENT AND MATERIALS, FUNCTIONS AND SERVICES PROVIDED ON OR THROUGH HARMONIX GAMES SERVICES, ALL OF WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND), INCLUDING BUT NOT LIMITED TO ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, UNINTERRUPTED ACCESS, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE HARMONIX GAMES SERVICES OR THEIR FUNCTIONS OR THE CONTENT AND MATERIALS OR THE SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE HARMONIX GAMES SERVICES WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH HARMONIX GAMES SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH HARMONIX GAMES SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE THEIR USE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF HARMONIX GAMES SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
We make no warranties of any kind regarding any Materials and Content not owned by Harmonix Games, including any products or services to which you may be directed, linked or otherwise connected from Harmonix Games Services, and you understand and agree that we are not responsible or liable for any such content, information, products or services originating from or provided by a third party, including their availability and functionality. We do not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on or through Harmonix Games Services. If any Harmonix Games Services have been authorized by us for distribution through a third party service through which you have downloaded and/or are accessing Harmonix Games Services, you understand and agree that: (a) in addition to these Terms between you and us, you are responsible for complying with such service provider’s terms and conditions, which are between you and such service provider, and (b) neither Harmonix Games nor such service provider is responsible or liable to you for the other’s products and services, including with respect to any product liability, infringement, support, maintenance, functionality or availability of the other’s products and services.
IN NO EVENT WILL HARMONIX GAMES, ITS MEMBERS, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF THE HARMONIX GAMES SERVICES OR THE MATERIALS AND CONTENT OR FUNCTIONALITY OR FEATURES ON OR ACCESSED THROUGH THE HARMONIX GAMES SERVICES, AS WELL AS ANY THIRD PARTY PRODUCTS, SERVICES, MATERIALS OR CONTENT THAT MAY BE ACCESSED ON OR THROUGH HARMONIX GAMES SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF HARMONIX GAMES OR SUCH OTHER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY HARMONIX GAMES SERVICES IS TO CEASE USING THE APPLICABLE HARMONIX GAMES SERVICES AND CANCEL ANY RELATED ACCOUNTS. UNDER NO CIRCUMSTANCES WILL THE TOTAL COMBINED LIABILITY TO YOU OF HARMONIX GAMES, ITS MEMBERS, AFFILIATES AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS OR CONTENT OR SERVICE PROVIDERS, ARISING OUT OF OR IN CONNECTION WITH THE HARMONIX GAMES SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO HARMONIX GAMES IN THE PRECEDING TWELVE (12) MONTHS, IF ANY, TO ACCESS OR USE HARMONIX GAMES SERVICES. SOME JURISDICTIONS DO NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold Harmonix Games, together with its members, affiliates and its and their respective directors, officers, employees, agents, business partners and content and service providers (“Harmonix Games Third Party Beneficiaries”), harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your use of Harmonix Games Services, your violation of the Terms or the posting or transmission of any materials on or through Harmonix Games Services by you, including, but not limited to, any third-party claim that any information or materials you provide infringes any third party proprietary right. You agree that the Harmonix Games Third Party Beneficiaries are express third party beneficiaries of these Terms and have the right (and are deemed to have accepted the right) to enforce these Terms against you as third party beneficiaries.
GOVERNING LAW AND DISPUTES
These Terms will be governed by, construed and enforced in accordance with the laws of the State of New York, without giving effect to any conflict of law provisions.
Any dispute relating in any way to these Terms, your use of Harmonix Games Services, or to any transaction with Harmonix Games will be submitted to confidential and binding arbitration in New York, New York. However, if you have in any manner violated or threatened to violate any of our intellectual property or other proprietary rights in Materials and Content, we may seek injunctive or other appropriate relief in any state or federal court in the State of New York. You consent to exclusive jurisdiction and venue in these courts. Any arbitration under these Terms will be conducted under the then-prevailing rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
Notice to California Residents: Pursuant to Cal. Civil Code § 1789.3, please note that (a) Harmonix Games is located at 521 Fifth Avenue, New York, NY 10175, (b) fees and charges for Harmonix Games Services vary depending on the services selected by you, and (c) if you wish to contact us in connection with a complaint regarding Harmonix Games Services or desire further information on use of Harmonix Games Services, you may correspond by mail or email us at email@example.com. For complaints, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, CA 95814 or by telephone at (916) 445-1254 or (800) 952-5210.
These Terms constitute the entire agreement between you and us and govern your use of Harmonix Games Services, and they supersede any prior agreements between you and us. You also may be subject to additional terms and conditions that are expressly applicable to certain parts of Harmonix Games Services, which are incorporated by reference herein, and in the event of any conflict between these Terms of Service and such additional terms and conditions, we will resolve the conflict in our sole discretion. We may terminate this Agreement and deny you access to Harmonix Games Services at any time (including by terminating user accounts for Harmonix Games Services), immediately and without notice from us or any liability on our part, if in our sole discretion you fail to comply with any provision of these Terms.
You agree that no joint venture, partnership, employment, or agency relationship exists between us and you as a result of this Agreement or your use of Harmonix Games Services.
Any claim or cause of action you may have with respect to us or Harmonix Games Services must be commenced within one (1) year after the circumstances giving rise to the claim or cause of action arose and in accordance with these Terms.
Any failure by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. The invalidity of any term, condition or provision in these Terms will not affect the enforceability of those portions of the Terms deemed enforceable by applicable courts of law.
You may not assign the Terms or any of your rights or obligations under the Terms without our express written consent. The Terms inure to the benefit of our successors, assigns and licensees. The section titles in these Terms are for convenience only and have no legal or contractual effect.
To contact us with any questions or concerns in connection with these Terms or Harmonix Games Services, or to provide any notice under these Terms to us, please email us at firstname.lastname@example.org.